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EU AntiDiscrimination Legislation

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Title: EU AntiDiscrimination Legislation


1
EU Anti-Discrimination Legislation
  • Tansy Hutchinson
  • Policy Officer
  • European Network Against Racism

2
Evolving equality standards
  • 1st Generation Constitutional Guarantees. Ex
    Article 14 ECHR
  • 2nd Generation Enforceable anti-discrimination
    law - treat all the same.
  • 3rd Generation Positive action, recognition that
    different treatment can be necessary for equality
  • 4th Generation Positive duties, recognition of
    institutional and structural discrimination,
    mainstreaming of right to equality

3
The International Bill of Rights
  • Universal Declaration of Human Rights Everyone
    is entitled to all the rights and freedoms set
    forth in this Declaration, without distinction of
    any kind, such as race, colour, sex, language,
    religion, political or other opinion, national or
    social origin, property, birth or other status.
  • ICCPR Article 26 All persons are equal before
    the law and are entitled without any
    discrimination to the equal protection of the
    law. In this respect, the law shall prohibit any
    discrimination and guarantee to all persons equal
    and effective protection against discrimination
    on any ground such as race, colour, sex,
    language, religion, political or other opinion,
    national or social origin, property, birth or
    other status.

4
European Law
  • ECHR Article 14 Rights without discrimination
  • EU Charter of Fundamental Rights Article 21 Any
    discrimination based on any ground such as sex,
    race, colour, ethnic or social origin, genetic
    features, language, religion or belief, political
    or any other opinion, membership of a national
    minority, property, birth, disability, age or
    sexual orientation shall be prohibited.
  • Article 13 EC Treaty Power to take appropriate
    action to combat discrimination based on sex,
    racial or ethnic origin, religion or belief,
    disability, age or sexual orientation.

5
EU Action
  • 1990s Campaign for a Directive
  • 1997 Amsterdam Treaty Article 13 EU Competence
  • 6 grounds within EU competence
  • 2000 The Race Equality Directive the Framework
    Employment Directive
  • 2008 Proposed Directive outside employment
  • Key features of EU action
  • Laws focus on basic non-discrimination ban - not
    4th Generation.
  • Do not extend into a range of areas (no coverage
    of criminal justice, migration etc)
  • Provision for positive action
  • Provision for accommodating specificities

6
Creating Change The Starting Line Group
  • Key features
  • A group of legal experts in 15 MS
  • A network without formal structure
  • Members key NGOs in 15 MS fighting against
    racism (around 400)
  • The role of the Churches
  • Social justice
  • Human rights advocacy

7
ENARs Role
  • Continuing the starting line running the
    marathon!
  • Race Equality Directive seen as the high standard
  • Transposition a priority - monitoring, SOLID
    Project
  • Gaps
  • Nationality Legal Status
  • Multiple discrimination - Race/Religion cross
    over
  • Scope - migration law policy, criminal justice

8
The Proposal Key features
  • The Directive meets ENARs call by
  • Being multi-ground
  • Using the scope of the Race Equality Directive as
    the starting point
  • Using the mostly the same concept and definitions
    of the Race Equality Directive
  • Reference to the Paris Principles
  • Potential enhanced legal standing for NGOs
  • Not seeking to amend the Race Equality Directive
    (protecting what we have)

9
Problems
  • Need to see the Directive as PART OF securing
    fundamental rights
  • Lack of recognition of multiple discrimination
    question remains of recital or text?
  • Discrimination by association or presumed
    membership
  • Blanket exception on access to education on
    ground of religion or belief
  • Blanket exception on secularism
  • Commercial activity provision
  • Nationality and legal status exception
  • Need for a more enabling positive action
    provision
  • Need for independent legal standing for NGOs
    National Equality Bodies

10
Questions for discussion
  • How can you use these standards to support your
    work ex advocating for the rights of migrants,
    asylum seekers and other vulnerable persons?
  • Do you need to call for changes to enable this?
    Ex nationality and legal status exception?
  • How will you need to prepare?
  • What are implications of the interaction of
    freedom of religion and anti-discrimination on
    grounds of religion?
  • Does the exception for access to education meet
    your needs while securing the right to education?
  • Are there more proportionate methods that could
    be used?
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